Minutes of the Fifth meeting of the Bills Committee
to study the Crimes (Amendment) Bill 1995

Meeting with Administration

Issue of "recklessness"

At the invitation of the Chairman, Miss Michelle TSANG took Members through the issues of "recklessness" in the definition of attempt and abolition of the common law offences of "conspiracy to corrupt public morals" and "conspiracy to outrage public decency", as set out in her paper (issued vide LegCo Paper No. CB(2) 1034/95-96). She highlighted the case of Attorney-General’s Reference (No. 3 of 1992) [1994] 1W.L.R. 409 for Members’ attention which affirmed that "the intention to commit an offence" should include "recklessness with respect to a circumstance where it sufficed for the office itself".

2. Miss Margaret NG said that the Administration’s reply had reinforced her proposition that the term "recklessness" should not be included in the definition of the offence of attempt, since its inclusion (without specific circumstances) would mislead rather than clarify the definition and the English courts did not have such term. Legal Adviser (LA) concurred with Miss NG’s view. He drew Members’ attention to page 412 and page 419 of the Attorney-General’s Reference (No. 3 of 1992) which demonstrated that the English court had no difficulty in interpreting the Criminal Attempts Act 1981 without the insertion of such term. Mr Stephen WONG said that the Administration had asked the English Law Commission the reasons for the insertion of the phrase "other than fault elements" in clause 49(2) of the Draft Criminal Code (equivalent of section 159H(2) in this Bill). The Law Commission explained that they could not find any explanations for the insertion on record. As the inclusion of s.159H(2) may cause confusion and need clarification, as Members had pointed out, the Administration had reviewed the issue and was inclined to delete the term from the Bill so that the relevant provisions would be the same as those in England. Mr WONG undertook to confirm the Administration’s considered view in a few days’ time.

Adm

Abolition of the two common law offences

3. Per the request of Members at the last meeting, Miss Michelle TSANG had set out the facts of the cases of Shaw v Director of Public Prosecutions and Knuller (Publishing, Printing and Promotions) Ltd and others v Director of Public Prosecutions and the relevant existing statutory provisions which might apply to those circumstances in her paper. She cautioned that the analysis was from a very broad perspective in the light that each case had to be determined on its own set of facts. In addition, these two cases took place in the 60’s and 70’s when standards of public morals and public decency might be different from the current ones. Nevertheless, the Administration took the view that there was no lacuna in existing legislation and that provisions of the Control of Obscene and Indecent Articles Ordinance (Cap. 390) (COIAO) would be sufficient to cover circumstances when indecent or obscene articles were published or particularly when they were distributed to a juvenile.

4. LA agreed with the Administration’s observation that existing statutory provisions could cover the case of Shaw when nude photographs and indecent words were involved. However, he referred to the specific circumstances in the case of Knuller and wondered whether they would be covered by the provisions of the COIAO. In this regard, he further drew Members’ attention to extracts of the All England Law Reports [1961] & [1972] respectively regarding the two cases (The extracts were tabled at the meeting and subsequently issued to absent Members vide LegCo Paper No. CB(2) 1092/95-96). In response to Mrs Miriam LAU’s enquiry, Mr Stephen WONG confirmed that the Obscene Articles Tribunal (OAT) could examine article which contains obscene or indecent materials, even if obsecene or indecent photographs do form part of that article. In this connection, LA drew Members’ attention to section 10 of the COIAO which prescribed the statutory guidelines for the OAT to determine whether an article was obscene or indecent or whether any matter publicly displayed was indecent. He agreed with Mrs LAU’s observation that obscenity/indecency under COIAO could relate to the underlying impact of the article, and supported Administration’s view that COIAO provided the legal machinery for appropriate regulation.

Issue of "fault element"

5. Miss Michelle TSANG reported that the Administration had written to the English Law Commission enquiring the rationale for including the phrase "other than fault elements" in the definition of the offence of attempt and the reply was that no such information was available. The Administration had therefore analysed the operation of this particular clause in the context of clause 159 of the Bill. Possible problems were observed particularly where an offence requires specific intent or knowledge. Members noted that the Administration inclined to delete the clause 159H(2). A policy decision would be made shortly. The Chairman therefore suggested and Members agreed to wait for the Administration’s clarification before further discussion on the issue.

Adm

Removal of the defence of impossibility

6. Members noted that the proposal for removing the defence of impossibility was supported by the Hong Kong Bar Association and the Law

Society of Hong Kong. Members present further agreed to support such removal in principle and would study the details in the clause by clause examination of the Bill.

Codification of incitement

7. Members present agreed that the Bills Committee provisionally did not support the codification of the offence of incitement. A formal policy decision would be made at the next meeting. Mrs Miriam LAU however took a dissenting view and expressed that she supported the recommendations of the Law Reform Commission to codify the offence of incitement. Mrs LAU reiterated that the LRC had already balanced the arguments for and against before reaching such a conclusion.

Way forward

8. At the suggestion of the Chairman, Mr Stephen WONG agreed to provide draft Committee Stage Amendments and a clean copy of the Bill with draft amendments to the Bills Committee for consideration before the next meeting. LA would then comment on the draft Committee Stage Amendments.

Adm
LA

Date of next meeting

9. The next meeting would be held on Friday, 10 May 1996 at 10:45 a.m..

10. There being no other business, the meeting ended at 11:35 a.m..